Messing With the Electoral College, Part 2
The DOJ Criminal Case Against Trump Strikes at the Heart of the Electoral College Process
U.S. Department of Justice Special Prosecutor Jack Smith is prosecuting two out of four criminal cases against former President Donald J. Trump. One of the criminal cases has to do with the subversion of key Electoral College events – submitting falsified electoral votes to the federal government and then attempting to count those votes. Submitting seven false electoral slates would have pressured then-Vice President Mike Pence – in his role as President of the Senate and overseeing the vote certification process – to acknowledge their existence and raise doubt as to the legitimacy of the election.
Subpoenas were issued involving documents directly related to the fake elector scheme, and documents linked to individuals involved directly with the January 6 insurrection. Taken together, these events – according to Mr. Smith’s indictment – represent conspiracies to commit fraud, disenfranchise voters, and obstruct an official proceeding. Each of these crimes stems from an attempt by Trump and his inner circle to manipulate and overwhelm key milestones and/or features of the Electoral College process:
Swing states
Electors meeting
Counting the electoral votes on January 6
These indictments stem from actions that have never occurred before in U.S. history.
Exploiting swing states and conducting bogus meetings of “electors”
By now we know that the Electoral College creates a handful of swing states each Presidential election cycle. Because the all-or-nothing cache of coveted electoral votes can “swing” either way, candidates (and the media) focus almost exclusively on these anointed states, to the detriment of most of the U.S. population. In the DOJ criminal case, prosecutors state that Mr. Trump and his co-conspirators devised fraudulent slates of electors in seven swing states: Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin. Some of the fake electors – says the indictment – were “tricked” into participating in the scheme.
Obfuscating and impeding an official procedure
Every four years the official votes submitted by the Electors are counted on the afternoon of January 6 following a Presidential election. The Constitution stipulates that this takes place before a joint session of Congress. The DOJ’s criminal indictment states that the defendant (Trump) and his co-conspirators attempted to convince the Vice President – who oversees the joint session – to use the fraudulent “electors’ ” votes and reject the legitimate Electors’ votes. When this failed, the defendant and his co-conspirators repeated fraudulent claims of a “rigged election” that was “stolen” to angry and agitated supporters gathered at the White House on January 6, 2021, and that the Vice President (Pence) had the authority to change the election’s outcome. Trump and his acolytes then exhorted the riled-up crowd to obstruct the certification session taking place at the U.S. Capitol. Special Prosecutor Smith did not charge Trump with inciting the ensuing riot, but the indictment ties the attack on the Capitol to the charged conspiracy by accusing Trump of trying to exploit the disruption. He did this by continuing to repeat false claims of election fraud and to pressure Members of Congress to further delay the electoral certification.
Trump and his inner circle did what no one in the history of the American republic has done before – exploit, manipulate and obstruct the clumsy and arcane features and procedures inherent to the Electoral College system.
Setting aside the purposeful manipulation of our complicated electoral process, did Trump have a First Amendment right to proclaim whatever he wanted following the 2020 election?
Yes, within limits. The DOJ indictment acknowledges that Trump had a First Amendment right to lie about the election and to file lawsuits challenging the results. But the indictment “seeks to draw a clear line between those kinds of lawful efforts and the unlawful means of discounting legitimate votes and subverting the election results,” as the New York Times’ annotated analysis of the federal indictment makes clear. Trump’s defense team has signaled that it will attempt to assert their client’s First Amendment rights.
One final thought regarding the First Amendment: Our society often forgets that with freedom of speech comes great responsibility. Do you have the right to scream “Fire!” in a crowded theatre when no fire exists? Of course not. Did the former President who lost the election have the right to cross the threshold of legally challenging the election’s outcome by continuously lying and repeating false claims to an already agitated mob?
We’ll see.